Sunday, January 31, 2010

The Rise and Fall of the Canadian Music Creators Coalition

Yesterday evening I was writing this post to talk about the Barenaked Ladies' and the work they're doing advocating a more open distribution philosophy among musicians and the music industry, but as I was doing my final research I noticed something odd.  It has been almost three years since I first heard of the advocacy group that Barenaked Ladies co-founded and a year since I heard from them.  I thought, "Before I publish this post, let's see what they've been up to lately," so I went to their website to get the latest news but found the site had not changed one bit since the last time I visited.

So what happened?  Why did all the voices fall silent?  After a fair amount of digging, I found a story much different than I had originally anticipated.  To best understand it all, let's roll the dials of our proverbial time machine back 4 years ... [effect: wavy Wayne's World flashback cross-fade sequence]

The Birth of the Canadian Music Creators Coalition

By 2006 the RIAA had already sued a most Napster-like companies out of existence, but they weren't satisfied with the victories, so next they targeted the homes and college dorm rooms of America.  Via John Doe letters, unreliable offender identification techniques, statutory damage claims based on hyperinflated compensatory calculations and bullying techniques that have been compared to litigious terrorism, the RIAA abused the legal system to attempt to make criminals of all who listened to music via the Internet without paying, legitimately or not.

Steven Page, lead singer for the Barenaked Ladies decided that he had had it.  He brought together a swath of well-known Canadian artists including Avril Lavigne, Feist, Matthew Good, Randy Bachman, Sarah McLachlan, Sloan, Sum 41 and Wide Mouth Mason to form the Canadian Music Creators Coalition with the three founding principles:

"(1) Suing our fans is destructive and hypocritical, (2) Digital locks are risky and counterproductive, and (3) Cultural policy should support actual Canadian artists."

For our purposes, only point #1 is really relevant.  Digital locks on music have proven to be ineffective and have largely fallen out of use, and according to Google Analytics most of our audience is not Canadian (although a surprising proportion is).

The CMCC in their founding document go on to say:

"[M]ajor labels are looking out for their shareholders, not for Canadian artists. Recording industry lobbyists, despite claiming to represent artists, seldom speak for us. Legislative proposals, particularly those that would facilitate lawsuits against our fans or increase the labels’ control over the enjoyment of music, are made not in our names, but on behalf of the shareholders of the labels’ foreign parent companies."

The CMCC, the Crown and the Songwriters Association of Canada

Move forward to 2008: The Canadian government introduced bill C-61, a copyright reform bill that would align Canadian law with the much maligned DMCA, changing the definition and enforcement of 'infringement' and introducing statutory damages would make RIAA-style litigation available to the Canadian recording industry.  In short order, the CMCC responded.

Did the CMCC response make a difference?  We'll never know.  The bill died on the table when parliament was dissolved in September of that year.

At about the same time, the Songwriters Association of Canada (SAC) put forward a proposal to legitimize music downloading by introducing a tariff on Internet connections that would go toward paying artists.  The CMCC endorsed the SAC proposal with this statement:

"The CMCC wishes to congratulate and endorse the Songwriters Association of Canada in pushing this proposal forward. We think the Canadian government should be facilitating discussion over the merits of this forward thinking approach to file-sharing rather than introducing legislation that looks backwards to approaches that have already failed."

On careful reading, the endorsement seemed carefully crafted and rather limited.  It moved more toward endorsing the introduction of new ideas rather than endorsing some of the proposal's specifics: the Internet tariff in particular.

I considered this to be a good thing.  Organizations charged with managing artist's royalties have been notoriously bad at equitably distributing those funds, especially to independent artists.

Barenaked No More

In 2009, learning from the C-61 fiasco, the Canadian government started an extensive public consultation on copyright reform accepting submissions from industry and individuals alike.  During the process over 8,100 submissions were received - a truly remarkable number when you consider that most major legislation usually only receives 50 to 100 submissions.

The CMCC also submitted a letter, albeit a boilerplate template of the same letter they published on numerous occasions previously.  To find it, I had to search the government database through a third party search engine.  Nowhere on their site did they mention the submission.  No press release.  No call to action.  Nothing.  As mentioned earlier, their site has been static for over a year with the exception of posting congratulations to their Juno winners.

Two other things also happened in the past year: Steven Page left the Barenaked ladies to pursue a solo career; The Barenaked Ladies signed a distribution contract with EMI, a member of the RIAA and strong proponent of their tactics.

Here's my rampant speculation:

Steven Page seemed to be the voice and driving force behind the CMCC.  Did the turbulence around his departure from BNL cause the ball to be dropped with nobody to pick it up?  Would BNL have signed with EMI if he were still there?

It is unfortunate that what could have been such a strong voice for change within the industry in Canada has quieted to a whisper.  Others have taken up the call, but none with such a public profile.

5 comments:

  1. Actually, the SAC has been very vocal and active in promoting an updated proposal. Please go to http://www.musicfilesharing.ca/ to see the proposal as it now stands.
    I just returned from both CES and MIDEM where I spoke on various panels. In the last 6 months we have spoken about our ideas in places as far afield as Hong Kong, Paris, Ottawa, Washington, Santa Monica, Toronto, Victoria BC and shortly New York and Sidney, Nova Scotia among others. We believe there is a consensus in the music industry moving toward an approach like the one we have been proposing.
    I believe the CMCC will be also heard again on the issue soon, and there is no doubt that our views on the issue of monetizing music sharing are largely the same and we are allies and look forward to working together on this issue.

    Many thanks

    Eddie Schwartz
    President, Songwriters Association of Canada

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  2. Eddie,

    Thank you so much for your comments. I'm preparing a response with a number of questions for your consideration. I expect to post the response late today or tomorrow.

    - Ingmar

    PS. For the convenience of readers, a linkified version of the address you provided: http://www.musicfilesharing.ca/

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  3. Eddie,

    Thank you for your comments on the Songwriters Association of Canada's copyright consultation submission. Although this story is focused more on the CMCC, additional comment and content from your organization is welcome.

    As I read through the proposal as posted on your site, I can agree that is, in good part, a forward thinking proposal in a world that craves the past. That said, I am unimpressed by the proposed tariff on Internet service as a method resolve the issue of illegal audio file sharing.

    To be clear, I am not one who takes the position that all content should be free (as in beer). I started this blog to provide information and support for artists who choose to freely distribute their content and in no way endorse consumers stealing content from artists who have not made that choice.

    In fact, I really don't have issue with the concept of a reasonable tariff for the purpose you describe (being the liberal that I am). What I have real concern about is the viability of its implementation - and hence, my questions.

    Note: Due to the length limitations for replies on Blogger, the questions are split across several posts. My apologies for the inconvenience.

    1. The Efficacy of Existing Organizations for Royalty Distribution

    One of the issues of note that musicians are having down here in the red-white-and-blue is how royalty funds are distributed to small and independent musicians. The most recent manifestation of the is the controversy behind SoundExchange's apparent unwillingness to find and distribute funds to many musicians, leaving the funds in limbo for long periods of time and reabsorbing unclaimed royalties into the organization. Other organizations also seem to have schemes where monies are only allocated proportionally to top acts leaving the little guy dry.

    Presuming that an Internet tariff is implemented, what measures would you propose for a more fair and equatable distribution of the collected funds?

    2. Technological Disruptions and Limitations

    The need for proposals such as yours are born from the need to mitigate the effects of disruptive technologies - in this case, the Internet and its file sharing networks. It is unreasonable to believe that, even if the proposed mitigation methods succeed, no new disruptive technologies will quickly come into existence to circumvent any limitations that this scheme may impose. I can think of no method short of making this type of circumvention illegal that could possibly address this issue and that would put us right back in the same place we are today.

    Another technological limitation is the ability to monitor what works were downloaded, legally and illegally (by a person who choose to opt-out). This would be required for both tracking usage for the distribution of royalties and detecting illegal activity. Passive monitoring methods are notoriously unreliable and difficult to implement, and as an expert in the field I can say with full confidence that due to technological limitations, both present and future (see previous paragraph), there is no third party company that exists today who can do this with any notable degree of reliability. Alternately, active monitoring systems could be put in place, but that would meet with heavy opposition by civil liberties organizations.

    Given that your proposal obligates your organization ('the collective') to address these issues, how would you do that?

    continued …

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  4. 3. Indemnification and Jurisdiction

    In your proposal you hint at the possibility of content exclusively available to license holders ("ISPs would fill their servers with clean great sounding versions […]" and "Clean virus free files"). The proposal also includes full indemnification for any personal, not for profit distribution using any technology.

    The also briefly mentions international cooperation to implement similar systems in elsewhere, but it seems unreasonable to think that this could become universal let alone be adopted in a tax-unfriendly environment like the U.S.

    Given the above:

    * Would I be indemnified from action in non-participating foreign countries if I were to take 'exclusive content' and make it available via file sharing networks to individuals in those countries even though the sharing was initiated from within Canada?
    * Would I be violating the law if I were to cut a CD of music and give it to a person who has, with or without my knowledge, opted out?
    * Would I be violating the law if I were to cut a CD of music and give it to a person who has no communication method that is tariff eligible?

    4. Without Financial Gain …

    Here's where things can get murky. Courts in both Canada and the U.S. have struggled in the grey areas of this one for a long time. Even the Creative Commons license has trouble defining this and, in my opinion (IANAL), has notable gaps in its definition (note the way 'Collections' are handled.)

    So, does "without financial gain" cover music placed on a website that also has a banner ad? Embedded in open source software where the author is accepting donations? Included in a collection of other works which require compensation for distribution? Public access or community cable broadcasts? Religious programming or non profits asking for donations?

    5. Tariff Coverage and Rate

    What is a fair monthly tariff? Would it only cover audio or all media? Presuming that only audio would be covered, would I have to pay extra tariffs for T.V., movies, photographs, books, etc?

    Finally

    I would warn you about using some of the numbers at the beginning of your proposal as the basis for your argument. There's no doubt that there is a LOT of file sharing going on out there, but using unreliable numbers calls into question the entirety of your proposal. You may want to read (and dig deep into the linkage - lots of good content there) an article in which I converse with Robert Hutton of Pollera on the exact numbers that you're using.


    Thank you for your comment and I look forward to your response.


    P.S. I apologize if I sound too adversarial in my response - that is not my intent. I thought to put little smilies all over the place, but that would have just looked silly :P

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  5. Wouldn't you know it, the second I post my comment I notice omissions.

    I forgot to add the link around the phrase in section 4, " note the way 'Collections' are handled."

    In section 3 I also forgot to ask about rules for remix - i.e. modifying works and/or incorporating works with other works.

    Thanks again and I look forward to your response.

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